Opinion
1:21-cv-01193-ADA-HBK (PC)
01-19-2023
THOMAS K. MILLS, Plaintiff, v. Z. JONES, et al., Defendants.
ORDER DENYING MOTIONS WITHOUT PREJUDICE IN LIGHT OF RULE 41(A)(2) PENDING MOTION ORDER DIRECTING CLERK TO STRIKE LODGED AMENDED COMPLAINT (DOC. NOS. 164, 165, 166)
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
On January 17, 2023, Plaintiff filed a motion to compel discovery and motion to enter letter from Attorney General's Office. (Doc. No. 164-65). Plaintiff also lodged a proposed amended complaint on the same date. (Doc. No. 166). On November 22, 2022, Plaintiff filed a motion stating he wishes to dismiss the entire action without prejudice. (Doc. No. 159, emphasis added), which the Court construed as a motion for voluntary dismissal pursuant to Fed.R.Civ.P. 41(a)(2). (Doc. No. 162 at 2). On December 1, 2022, Defendants filed a non-opposition to the Rule 41(a)(2) motion. (Doc. No. 163). Due to Plaintiff's withdrawal of consent (Doc. No. 160, 162), Plaintiff's Rule 41(a)(2) motion (Doc. No. 159) remains pending before the district court.
Defendants filed a motion for summary judgment noting Plaintiff had initiated the action before exhausting his administrative remedies. (Doc. No. 151). Presumably, Plaintiff acknowledging he prematurely filed the action, sought a dismissal without prejudice so he may file a new action after he fully exhausted his administrative remedies.
Plaintiff's filings of the instant motions are unclear considering his pending motion to voluntarily dismiss this case. Thus, the Court will deny Plaintiff's motions without prejudice pending the district court's ruling on Plaintiff's pending Rule 41(b) motion to dismiss. If the district court denies Plaintiffs' Rule 41(a)(2) motion, Plaintiff may refile the motions, if appropriate. Further, the undersigned has previously issued a Report and Recommendation to deny Plaintiff's previous motion to file a second amended complaint (Doc. No. 154). Again, should the district court deny the Rule 41(a)(2) motion, the district court will first have to rule on Plaintiff's previous motion to file a second amended complaint before Plaintiff may lodge a new complaint. Thus, the Court will direct the Clerk to strike the lodged amended complaint.
ACCORDINGLY, it is ORDERED:
1. Plaintiff's motion to compel discovery (Doc. No. 164) and motion to enter letter from Attorney General's Office (Doc. No. 165) are DENIED without prejudice.
2. The Clerk of Court shall strike Plaintiff's lodged amended complaint (Doc. No. 166).